Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1721

Commentary on Burnet v. Chetwood (1721)
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Burnet v. Chetwood (1721)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The decision in Burnet

4. Burnet and the inherent jurisdiction of the Court

5. References

1. Full title
Burnet v. Chetwood (1721) 2 Mer. 441

2. Abstract
Chancery case concerning the publication of a translation of a work protected under the Statute of Anne 1710. The decision established that the reproduction of works in translation was not unlawful under the 1710 Act. The decision is also significant, however, in relation to the court's inherent jurisdiction concerning the publication of works on grounds of public policy.

Drawing upon material in the National Archives the commentary explores the background to, and substance of, the decision as well as its relationship with current judicial practices in refusing the court's protection to copyright protected materials on the grounds that the content of the work is, for example, obscene, sexually immoral, defamatory, blasphemous or irreligious.

3. The decision in Burnet
The first case to come to court following the passing of the Statute of Anne 1710 was Burnet v. Chetwood (1721)[1] which concerned an English edition of Dr Thomas Burnet's (c.1635-1715) Latin treatise Archaeologia Philosophica, first published in 1692.[2] On 2 October 1721 the author's brother (and executor) entered a bill of complaint in the Court of Chancery alleging that the defendants, William Chetwood (d.1766) and Richard Franklin (d.1765), were engaged in a project to both print an English translation of Archaeologia Philosophica. In addition, the defendants were also proposing to publish for the first time another work by Burnet, De Statu Mortuorum et Resurgentium, again in English.[3] The court granted Burnet's brother an initial injunction,[4] in addition to ordering that he "be at liberty to take out process of subpoena against the defendants to compel them to appear to and answer" the complaint. In their answer to Burnet's petition, submitted to the court a week later, Chetwood and Franklin set out that their work was "not the same book" as Archaeologia Philosophica but rather "a translation of the said book into English", and continued that, whereas the claimant grounded his action on the 1710 Act, "yet the said statute doth nowhere prohibit or forbid the translating of such books into any other language and the printing and publishing such translation".[5] As to the second work, they simply denied that they had "procured any copy of the said book".[6] Their arguments were to no avail, however, as after "the hearing of what was alleged on both sides" Lord Chancellor Macclesfield (1667-1732) awarded an injunction to prevent the translating and printing of both works, as well as the delivery up of "all copys or printed sheets" of the said books which the defendants then had in their possession.[7]

John Merivale (1779-1844), reporting the case in 1818 as an appendage to his report of Southey v. Sherwood (1817),[8] recounts that the defendants had argued that "a translation of a book was not within the intent of" the statute:

"[W]hich being intended to encourage learning by giving the advantage of the book to the author, could be intended only to restrain the mechanical art of printing, and that others should not pirate the copy and gain an advantage to themselves by reprinting it; but not to hinder a translation of the book into another language, which in some respects may be called a different book, and the translator may be said to be the author, in as much as some skill in language is requisite thereto, and not barely a mechanic art, as in the case of reprinting in the same language; that the translator dresses it up and clothes the sense in his own style and expressions, and at least puts it into a different form from the original ... and therefore should rather seem to be within the encouragement than the prohibition of the act."[9]

Apparently sympathetic to this argument that a translation of a work may be fairly called a different book on the grounds that a translator "has bestowed his care and pains upon it", the Lord Chancellor agreed with the defendants that such endeavours were "not within the prohibition of the act". He continued, however, that this was a book that contained "strange notions" and as such should not be made available in the "vulgar" tongue (that is, in English). Rather, it should remain in Latin only, "in which language it could not do much hurt, the learned being better able to judge" the work. Merivale concludes his account of the decision by noting that "[a]n injunction was granted", and this based upon the Lord Chancellor's opinion that the court has "a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on religion or morality".[10]

4. Burnet and the inherent jurisdiction of the Court
The decision in Burnet is of interest in a number of respects. In the first place it demonstrates the straightforward manner in which the court approached the question of what constituted infringement under the new legislation. Presented with the reproduction of a work in translation, or in modern parlance a ‘derivative work', the court considered it not to infringe; a work in translation, as the defendants suggested, was simply "not the same book". The question of whether or not translations of works should be copyright protected would of course occupy a central place in the development of a system of international copyright protection throughout the mid-nineteenth century,[11] and while the International Copyright Act 1852 would later provide authors from certain foreign jurisdictions with some protection in this regard,[12] the decision in Burnet meant that British authors would have to wait until the enactment of the Copyright Act 1911 before they could claim a general right to prevent others from reproducing their work in translation.[13]

The litigation is also interesting in that it alludes to, but leaves unresolved, the issue of the status of unpublished works within the copyright regime. Burnet's bill of complaint referred to the fact that De Statu Mortuorum et Resurgentium had never been published as a result of which the "original property" therein lay with first the author and by extension with Burnet as the executor of his brother's estate. The Statute of Anne had specified protection for works already in print, as well as a protection for new works "to commence from the day of the first publishing the same", but left unaddressed the question as to what rights might subsist in an unpublished manuscript. Although the courts would subsequently consider the issue,[14] there is nothing either in Merivale's report, or the account of the decision in the court's Book of Records,[15] which provides any real insight as to the Lord Chancellor's decision to injunct the translation and publication of the second work. It may have been that he considered De Statu as "strange" a work as Archaeologia Philosophica and so best prevented from being published in English; alternatively, it may have been that it was the unpublished status of the work that provided the main grounds for the injunction. The substance of the Lord Chancellor's rationale in this regard remains ambiguous.

Perhaps most significant, however, is the fact that since the time of Burnet, and the Lord Chancellor's assertion as to the judiciary's general "superintendency" over all books, the courts have assumed the ability to adjudicate upon the dissemination and protection of copyright protected material in a manner that otherwise functions outside the parameters of the legislation.[16] In Burnet this took the unusual form of granting an injunction to prevent the publication of a work that was not in fact held to infringe the copyright in another work. More typically, however, the courts have tended to exercise this inherent jurisdiction by refusing a claimant relief on the grounds that the content of the claimant's work is obscene or sexually immoral, defamatory, blasphemous or irreligious. For example, Southey v. Sherwood (1817), the case to which Merivale appended the first printed report of the decision in Burnet, concerned an application for an injunction to prevent the publication of Southey's poem ‘Wat Tyler' (another previously unpublished work). Lord Eldon (1751-1833), noting that an action at common law would not succeed where the work was ‘in its nature, calculated to do injury to the public', refused to grant the injunction, while at the same time acknowledging that such a decision could lead to somewhat counterintuitive results:

"It is very true that, in some cases, [the decision] may operate so as to multiply copies of mischievous publications by the refusal of the Court to interfere by restraining them; but to this my answer is, that, sitting here as a Judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties except as it relates to their civil interests; and if the publication be mischievous, either on the part of the author, or of the bookseller, it is not my business to interfere with it ..." [17]

5. References

Governmental papers and legislation

Statute of Anne, 1710, 8 Anne, c.19

International Copyright Act, 1852, 16 Vict, c.12

Cases

Burnet v. Chetwood (1721) 2 Mer. 441

Southey v. Sherwood (1817) 2 Mer. 435

Nutt v. Gibson (1714), NA, c.11 1965/21

Pope v. Curl (1741) 2 Atk. 342

Lawrence v. Smith (1822) Jacob 471, 473

Walcot v. Walker (1803) 7 Ves. 1

Murray v. Benbow (1822) The Times 2 Feb. 1822

Murray v. Dugdale (1823) The Times 22 July 1823

Stockdale v. Onwhyn (1826) 5 B&C 174

Norton v. Churton (1835) The Times 16 July 1835

Glynn v. Weston Feature Films [1916] 1 Ch 261

Books and Articles
Deazley, R., On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Oxford: Hart Publishing, 2004)

Saunders, D., "Copyright, Obscenity and Literary History", Journal of English Literary History, 57 (1990): 431-44

[1] Burnet v. Chetwood (1721) 2 Mer. 441; see also: National Archives (NA), c.11 242/45, c.33 335/323. For a commentary upon the case see: D. Saunders, "Copyright, Obscenity and Literary History", Journal of English Literary History, 57 (1990): 431-44.

The Statute of Anne, 1710, 8 Anne, c.19, had previously been referred to in an action taken by John Nutt, in 1714, against John Baskett, John Williams, Edmund Powell, John Matthews and Robert Whitledge, for printing a book by Dr Edward Gibson, The Statutes, Constitutions, Cannons, Rubricks and Articles of the Church of England. Their edition, Nutt argued, was printed in contravention of the printing privilege he held for "all manner of Law books whatsoever they be which in any manner of wise touch or concern the concord of statute Laws of the Realm of England". As part of his complaint, Nutt referred to the fact that Dr Gibson: "[D]id and doth pretend a right to the printing and publishing of the said Book as having been the author of the same and doth likewise pretend that by vertue of an Act of Parliament made in the Eighth Year of her present Majesty ... The author or authors of any books not before that time printed should have the sole liberty of printing and reprinting the same by the space of fourteen years to commence from the day of the first publishing the same". Nutt continued however that the defendants were well aware of the "provisor" in the legislation that nothing in the Act would prejudice any previously existing rights to print books. He insisted that the printing privileges granted by the monarch were "fully saved by the said provision" and continued that by virtue of the same: "Your Orator is in the same case as if the said Act had never been passed". It would appear that Nutt's assessment of the impact of the 1710 Act upon the existing privileges (or rather the lack thereof) was an accurate one. In the ten years that followed there were no less than a further fifty-four petitions in Chancery for injunctions to prevent the reproduction of works protected by such printing privileges, whether brought on behalf of the Company of Stationers or by John Baskett who, from 1715, replaced Nutt as the King's Printer. In only one of these subsequent cases was there any reference to or mention of the Statute of Anne; as regards the validity and operation of the printing privileges it was indeed as if the "Act had never been passed". See Nutt v. Gibson (1714), NA, c.11 1965/21. See also: R. Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Oxford: Hart Publishing, 2004).

[2] As a consequence the work fell within the terms of the twenty-one year protection for "any book or books already printed" set out in s.1 of the 1710 Act.

[3] With regard to this second work, the claimant sets out in his bill that Dr Burnet did during his lifetime print a few review copies of De statu for himself. The printer however, while printing the works for Dr Burnet, also ran off a copy for himself. This "surriptitious copy" had come into the possession of "a learned and worthy person who had an esteem for Dr Burnet [and] did order ten or twelve copies and no more of the book to be printed ... which he presented to friends with an obligation that neither they nor any person into whose hands the said Book should fall should permit it to be copied or printed". It was one of these printed copies which Chetwood and Franklin had procured; NA, c.11 242/45.

[4] It is clear from the entry in the court's Book of Records that the defendants had printed and advertised their intentions to make both works available after an initial injunction had been granted in that, as part of the court's decision on 10 October, the defendants were ordered to "show good cause unto this court ... why they should not stand committed to the prison of the fleet for their said offence of contempt"; NA, c.33 335/350. Merivale's report of the case also makes reference to the fact that the defendants had advertised the works for sale in The Daily Journal on 10 October in contempt of court; Burnet v. Chetwood, 443.

[5] NA, c.11 242/45. Although the defendant's answer is dated "19 October 1721" the court's Book of Records lists the hearing of the case as taking place on Thursday 10 October (NA, c.33 335/350). It seems likely then that the defendants' bill was actually entered on the 9 October.

[6] NA, c.11 242/45.

[7] NA, c.33 335/350.

[8] Southey v. Sherwood (1817) 2 Mer. 435.

[9] Burnet v. Chetwood, 441.

[10] Ibid.

[11] See: uk_1838; uk_1844; uk_1852.

[12] International Copyright Act, 1852, 16 Vict., c.12; see: uk_1852.

[13] The Copyright Act 1911 defined copyright as including the sole right to ‘produce, reproduce, perform, or publish any translation of the work'; Copyright Act, 1911, 1 & 2 Geo.5, c.46, s.1(2)(a).

[14] Pope v. Curl (1741) 2 Atk. 342; see: uk_1741a.

[15] NA, c.33 335/350.

[16] It should be remembered in this regard that Burnet also preceded the decision in Rex v. Curl (1727) 93 ER 850 which first established the criminal offence at common law of publishing an "obscene libel"; see in general Saunders.

[17] Southey v. Sherwood, 439-40. In his decision in Lawrence v. Smith (1822) Eldon made a similar observation: "As this Court has no jurisdiction in matters of crime, it has been said, that if the injunction is refused, it has the effect of increasing the number of copies. The answer to that is, that I have nothing to do with it as a crime. The question relates only to the civil right of property. If the one party has that right, the other party must not invade it; if he has not that right, the Court cannot give him the consequences that belong to it"; Lawrence v. Smith (1822) Jacob 471, 473. See also: Walcot v. Walker (1803) 7 Ves. 1; Murray v. Benbow (1822) The Times 2 Feb. 1822; Murray v. Dugdale (1823) The Times 22 July 1823; Stockdale v. Onwhyn (1826) 5 B&C 174; Norton v. Churton (1835) The Times 16 July 1835; Glynn v. Weston Feature Films [1916] 1 Ch 261.